“Medical evidence delivered in our courts of law has of late often become a public scandal and a professional dishonour.  The bar delights to sneer at and ridicule it; the judge on the bench solemnly rebukes it; the public stand by in amazement; and honourable minded members of our profession are ashamed of it.”

This quote illustrates how much things have stayed the same, and have changed, since 1863, when the British Medical Journal published these words in its editorial, “Medical Evidence in Courts of Law,” 1 B.M.J. 456, 456 (1863) ( available at http://www.bmj.com/cgi/reprint/1/122/455).  Medical evidence has perhaps on occasion improved with the increased emphasis on evidence-based medicine, but today the bar no longer sneers at meretricious medical evidence; it embraces it.  And the judge on the bench rarely rebukes the clinical practitioner; in many state and federal courts, the clinician is exempted from the evidentiary requirement of providing reliable opinions.

The British Medical Journal, almost 150 years ago, exalted the medical profession as a “scientific calling,” id. at 456, and presumably the Journal would not except medical practice from the rigors of scientific method.  The BMJ‘s editorial is remarkable for its recognition that the goal of expert testimony was to pass itself off to jurors as fact rather than opinion, by overwhelming the finder of fact with the credentials of the witness.  The idea was, in 1863, and still is, to create faith in the witness and his or her assertions rather than an honest appreciation for the limitations and uncertainty of the opinions on the issues in the case.  Note how Federal Rule of Evidence 703 permits expert witnesses to give opinions without stating their bases, and how lawyers are permitted to impeach an expert witness with statements out of a textbook, solely because someone of renown has once held a contrary opinion, and without regard for the evidentiary basis of the opinion.  The law still is mired in authority- and faith-based approaches to opinions.  Perhaps the trier of fact should be hearing more fact and less opinion.  There is a lot of work to be done.

Basing medicine and science upon reliable evidence — what a novel idea!  Maybe the idea will catch on in our court system.

The B.M.J. editorial’s moralizing about expert witnesses’ obligations seems out of place in our positivist legal universe:

“The practical conclusion of all this plainly is, that the medical man who enters the witness-box as an advocate’s witness, to speak, not the whole truth, but only so much of it as shall damage his opponent (suggestio falsi); and who carefully suppresses whatever might tell in favor of his opponent (suppressio veri) — commits a highly immoral act, for which he is accountable at the bar of professional opinion.”

Id. at 458.

BTW, the on-line archive of the British Journal of Medicine is a wonderful, free resource of medical studies and medical history, going back to 1840. < http://www.bmj.com/archive/>

NAS

The following thoughts certainly cannot be blamed on anyone other than me, but many people inspired and encouraged me over the years, not the least of whom was R. Nicholas Gimbel.  McCarter & English has had no shortage of outstanding lawyers, but Nick stands out in my memories of the firm for the courage, passion, and insight that he brought to life, and to the practice of law.  It was a privilege to have been one of Nick’s law partners and friends.  I am indebted to Nick for his generosity in sharing ideas, and for sponsoring my membership in the American Law Institute.  His death last year, at age 58, came too early for his creative, searching mind.  My modest hope is to honor Nick by dedicating this blog to him.

Welcome to a blog of discussions about the law of torts as it has come to be in the 21st century United States.  President and Mrs. Obama are urging the people of the United States to slim down and firm up.  What better way to accomplish this goal than to cut out mass torts from our diet?  Surely the history of mass tort product liability litigation in the United States — over asbestos, Fen-Phen, silica, and myriad other raw materials and products – is a history of gluttony and excess.  So let them eat little torts.